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Regulations Issued for Remote Participation in Meetings Subject to the Massachusetts Open Meeting Law

By JOHN R. REGIER

The Massachusetts Attorney General recently promulgated regulations authorizing remote participation in meetings subject to the Open Meeting Law under certain prescribed circumstances.

The Massachusetts Open Meeting Law has long required public bodies to conduct their business in meetings that are open to the public. They cannot, for example, take action by unanimous written consent, as many private sector boards can. Before 2009, when the legislature enacted substantial revisions to the Open Meeting Law, there was some uncertainty about whether members of public bodies could participate in meetings by telephone. The Attorney General’s office had always said no, but a few district attorneys, who had jurisdiction over meetings of local bodies, had said yes.

When the law was revised in 2009, the answer became clear. Remote participation in meetings was prohibited, effective July 1, 2010, without the permission of the Attorney General’s office. (The power to enforce the Open Meeting Law was also consolidated in the Attorney General’s office.) The Attorney General was given the power to authorize remote participation by members of a public body not present at the meeting location, so long as the absent members and all persons present at the meeting location would be clearly audible to each other and so long as a quorum of the body, including the chair, would be present at the meeting location. By promulgating the new regulations, the Attorney General has decided to allow such remote participation under certain circumstances, although the Attorney General strongly encourages members of public bodies to be physically present at meetings whenever possible.

If a public body wishes to avail itself of this flexibility, it must first take formal action to adopt the practice of remote participation, generally by majority vote of the body. Such a vote will permit remote participation in subsequent meetings of that body and of its committees. In the case of cities and towns, the mayor (or other chief executive officer) in a city and the board of selectmen (or other chief executive officer) in a town are authorized to adopt the practice for all local public bodies in that municipality.

As required by the statute, members of a public body who participate remotely and all persons present at the meeting location must be clearly audible to each other, and a quorum of the body, including the chair or, in the chair’s absence, the person authorized to chair the meeting, must be physically present at the meeting location. Members of the public body who participate remotely are permitted to vote.

There are five permissible reasons for remote participation. The chair (or other person chairing the meeting) must make a determination that one or more of the following factors make the member’s physical attendance unreasonably difficult:

(a)  personal illness;

(b)  personal disability;

(c)  emergency;

(d)  military service; or

(e)  geographic distance.

At the start of the meeting, the chair must announce the name of any member who will be participating remotely and the reason. All votes must be taken by a roll call.

A member participating remotely may participate in an executive session, but must state at the start of the session that no other person is present and/or able to hear the discussion at the remote location, unless the presence of that person is approved by a simple majority vote of the public body.

A public body may use any technology that enables the remote participant and all persons present at the meeting location to be clearly audible to one another, including telephone, Internet, or satellite-enabled audio or video conferencing. If video technology is used, the remote participant must be clearly visible to all persons present in the meeting location.

A municipality or public body may adopt policies that prohibit or further restrict remote participation.

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Authors

Leonard Weiser-Varon is a Mintz Member who handles municipal and corporate debt transactions. Len represents state sponsors and private program managers of Section 529 and 529A savings programs. He often speaks on securities and constitutional law matters.
John R. Regier is a Mintz Member who's considered one of the foremost bond authorities in Massachusetts. He has represented the state in bond dealings for decades. John is also an ethics partner at Mintz, and he was largely responsible for developing the firm's pro bono policy.